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Angela J. Davies Education. (2013) BookTV at American University Angela J. Davies, 'Arbitrary Justice The Power of the American Prosecutor.'

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  CSPAN    Book TV    Angela J. Davies  Education.  (2013) BookTV at American  
   University Angela J. Davies, 'Arbitrary Justice The Power of...  

    March 18, 2013
    1:00 - 1:39am EDT  

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dangerous places or a journalist in dangerous places. definitely a security failure. something went terribly wrong. america lost one of its greatest ambassadors, but remember beirut, 1983, on president reagan's watch. that bombing isn't the first thing people associate with the name reagan. he was re-elected. except for the relatives of those who died in beirut. so it's hard to tell exactly how it will affect fully her legacy but definitely a moment that will continue by associated with her time in office. >> host: thank you so much for the book and the interview. >> guest: thank you for having me. it was pleasure. ...
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that the prosecution is from the most powerful branch in the judiciary? >> because prosecutors actually
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control the criminal justice system. they are the most powerful actors in the justice system because they make the charging and plea bargaining discussions in the criminal justice system and those decisions are the decisions that really drive the criminal-justice system. most people think about police officers being sort of the first people that, you know, are introducing the criminal-justice system and for the most part, that's true. police officers have a lot of discretion who they stop on the street and ultimately who they addressed. but the only bring individuals to the courthouse door. it is the prosecutor that has the power to entrench individuals in the system or not because once a police officer brings an individual to the court, to the prosecutor, the prosecutor then is the person who decides whether that individual will be charged with a crime and what those charges
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will be even if there is probable cause a person committed a crime even if the prosecutor believes that he or she has proved beyond a reasonable doubt and has proved that person's guilt at trial they are not required to charge that person. they could decide to simply drop the charges or they can decide to go forward and they have a lot of discretion in deciding what to charge that individual with. and they are accountable to no one who themselves. they don't have to justify bringing charges or dropping charges and there is a love of discretion in what they do. so, for example of a police officer of trusten individual for possession of cocaine and the individual has a large amount of cocaine in their possession, with that amount of cocaine, a prosecutor could charging individual with the intent to distribute cocaine which carries a lot of time in
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prison and possibly even a mandatory minimum period of time in prison but just because they have the evidence to charge that, they can decide i'm just going to charge this person with a simple possession which is a misdemeanor that carries a year in prison at most and probably probation so that is a lot of power to put in the hands of one person and the concern i have is that when that discussion in power is not used in an equitable fair way when there are individuals similar situated in terms of what their criminal history is and prosecutors treat one with a certain favoritism and the other if they don't, then that's when you get of fairness in the system and prosecutors unlike any other official in the system, they are
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not as accountable in my view to the public that they serve. police officers do what they do in public space. judges are in the courtroom when they do what they do. prosecutors make these decisions behind closed doors and it's difficult for the public to hold them accountable if they are doing those functions in ways that produce inequity in the system more produce and fairness, racial disparities and so on so that is my concern about prosecutors. they are important and enforceable law but we need them to do it in a way that is fair and we need to find out how to hold them accountable because a lot of their actions can and do produce in justices in the system. >> host: professor davis is the power institutionalized and tell all or just developed over the years?
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>> guest: the system of public prosecutions started right around the time of the democracy when we had this view that we wanted to vote for people and hold them accountable the people choose the individuals to perform these functions, and so when we start to get this prosecution because in the past there used to be practices, individuals, private individuals are able to bring charges against other individuals and they have to pay for it. that didn't last very long and then there was the prosecution system for the state and local system, so all of our states except for about four of them had elected officials for the state. federal prosecutors are appointed but state and local our elective officials and that ev process is supposed to be the way that we the people hold
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prosecutors accountable. the problem in the system is that because there is no transparency in the most important functions prosecutors performed mainly the charging and the plea-bargain and it's pretty hard for the electorate to hold them accountable. when they run for office on the state and local level they don't talk about here are my charging policies of a plea bargaining policies because i don't think most people would know what those terms mean they speak in very general terms i am tough on crime and then that is really basically with the public has to choose from without any discussion about the most important functions that they perform. and so that is my concern. what a defendant's lawyer not be about to be part of that or to hear the deliberations of the prosecutorial team? >> absolutely not.
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so, for example i spoke a bit about the charging functioned. it's hard for me to talk about that without also talking about the bargaining. the defendants are involved in the defense attorneys are involved in the plea bargaining process but not in a way that gives them very much say so, and i will explain why. i talked before about the charging function. well, very closely connected to that is plea-bargain in. we have a system in the justice where i think most americans think that there's all these trials going on in the criminal courtrooms around the country. they watch law and order and they see these trials going on. there are more going on on the tv shows probably than in real life. we don't have a lot of trials going on but we do have a lot of guilty pleas of not 95% of all criminal cases are resolved by way of a guilty plea, not a trial and the way that works is
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the prosecutor will bring the charges and as i mentioned before they have a lot of discussion deciding what to charge. by example the prosecutor could charge a felony that if they want to they could charge a misdemeanor. there's also a phenomenon called overcharging where they pylon charges because it's very easy to bring a charge all across the probable cause to believe the person committed the offense. more than likely not. that is a very low standard than the would have to prove if it went to trial which is proved beyond a reasonable doubt. so prosecutors some of them will bring lots of charges even knowing that some of them won't be approved that higher standard and they do that so that they are at an advantage of the plea bargaining process. so if there are five charges, for example, the prosecutor can do to the defense attorney and say i allow your client to plead to one of those and if he pleads guilty to 1i dismissed the other for if he agrees to plead guilty
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rather than going to trial and exercising his right to trial. it's a negotiating thing. they come back and say how about if he pleads to one misdemeanor rather than a felony and it's a back-and-forth. but ultimately the prosecutor has the last word. the judge has nothing to do with it. the judge can't sit there and force anybody's hand coming and they don't even have to make an offer if they don't want to so they are holding all the cards in the situation even there are they are negotiating they have the power there so that is what the defense attorney can do. now, that happens in many more cases than not. we have far more in the system than we do trials and i don't think there is anything wrong with plea-bargain into the it is certainly benefits all sides. for the example of he's actually
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guilty and given an opportunity to have them dismissed, that is going to be a better result for him than going to trial having the jury come back and find him guilty of all five it's going to benefit him and it benefits the government, the prosecutor because at steve's the system a lot of time and money rather than going through a trial that's expensive and lasts for days and moves the case so there's a lot of people in the plea bargaining system that benefits from that process. if it's there it's not fair for example if the prosecutor makes a plea bargain with the defendant but doesn't tell the defendant of the evidence against him or doesn't reveal to the defendant that there is exculpatory evidence don't tend to show the defendant is not guilty if the prosecutor
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suppresses that, doesn't turn it over to the defense that isn't fair. >> is that legal? >> guest: it is not. the of a constitutional obligation to turn over all exculpatory evidence in brady versus maryland it's called brady material he will hear it called. many people remember the duke lacrosse case in north carolina were the prosecutor had this evidence showing that the young men on the team were probably not guilty because none of their dna was found and he suppressed that and ended up getting disbarred in that case which is in and of itself unusual because frequent prosecutors don't turn over that evidence and nothing happens to them which is just another thing i would like to talk about. but getting back to plea-bargain in, when a person is pleading guilty and they don't know whether they've got a defense of their plea to guilty before
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they've had an opportunity to investigate the case that frequently happens the prosecutor will come in the day after the case has been brought and say i will let you plead guilty to one of these felonies and will dismiss but he has to take the plea to marlo and the defense attorney might say i have an obligation to investigate the case and make sure my client doesn't have a defense. they will say to complete or leave it. if that happens a lot in the system we have defense attorneys in the position where they cannot even edify is their client one way or another. the have to tell them about it of course but you can't do your job as a defense attorney if you are not given the time to investigate the case to see whether that deal as a good deal for your client. you can see some people under an incredible amount of pressure and we know of instances and a number of examples of
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individuals who pled guilty that were later found not guilty that they were afraid to go to trial facing all these felonies with mandatory minimum sentences if the jury comes back with convictions the judge has no discretion because they have to serve a mandatory ten, 15, 20 years and they're given this deal that says if you take this deal you will only serve two years even if they are not guilty they are thinking i can't spend the rest of my life behind bars i will take it. that isn't the kind of criminal justice system we should have in the united states. i feel prosecutors because of their power and discretion and the instances they engage in misconduct and i'm not saying that all of them do it. we have good ethical prosecutors the do their job but in my view we have been far too many who all are not fulfilling their obligations for exercising their
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discretion and results that are not fair and we really don't have a system for holding them accountable, and i think that is. >> host: professor davis what is your background in the courtroom? >> guest: i was in the district of columbia for 12 years, first representing the juvenile ostrich with crimes and then i went on from simple assault to first-degree murder. i did that for 12 years representing clients for six years and i was in the deputy director of that office for the remaining six years and that is in fact when i became so interested in this topic and when i basically became a professor i was determined that would be my area of study because in my experience they are a lawyer. i was surprised by how much power and discretion prosecutors have and how little
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accountability there was and i saw the individuals who are situated being treated differently and i thought of that was unfair and it seemed arbitrary the title for my book quite frankly i'm not just talking about a defendant and sometimes the victims' cases get far more attention than other victims. there are long their race and class lines and a number of racial disparity systems and we know people that are wealthy tend to be true or fairly. at the same is true for race. there are a lot of races it's often difficult to tell whether we are talking about race and class because african-americans and latinos are disproportionately poor in this
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country and the poor are disproportionately black and brown people in this country and they don't get a fair shake in the criminal-justice system. i'm not saying it's all prosecutors' fault. it's a complicated issue. there are many reasons that is the case but prosecutors definitely play a role. volume of one to say that prosecutors are intentionally discriminating, i don't think that at all. i do think that there is a lot of implicit body is going on when prosecutors are making decisions just as i think all of us in america suffer from implicit bias. the stereotypes are out there in the society that we are not even conscious of that cause us to act the way we do. i think it's very easy for a prosecutor to see the humanity and a defendant who looks like them. if there is a young kid that has his own private lawyer and a
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private lawyer is well represented and comes to a prosecutor and says he has a future, he's going to college, don't ruin his life because of this one case, the prosecutor can have empathy. the prosecutor might say why have a few indiscretions myself and if someone hadn't -- if someone had mercy on me i could have ended up -- so they can see the end of the very and they might be more inclined to give that person -- not consciously, not consciously saying i'm going to help out this young white kid but they are going to be able to empathize more with that person and a poor black kid who doesn't have a future may be his lawyer is able to get him in a drug program if he needs one, so i don't think it's an intentional thing but it's a race neutral decision that prosecutors make often have racial affects and
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there has to be a way for us to get at that. again, i think the prosecutors -- most of them are well-meaning -- most of the chief prosecutors in this country are white, no question about that that show the vast majority of the individuals running r. white and the same is true in the federal system but quite frankly in my experience when i was in the district of columbia there were quite a few african-american prosecutors and they often engage in the same problematic decision making. i am not want to say -- the diversity in those offices we absolutely need more diversity, we need more latinos, prosecutors, african-americans, races and ethnicities and so forth because we need diversity for all the reasons we need diversity.
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but i don't think that the call to proxy is black or brown that's going to necessarily for that reason because there is a culture in certain prosecutors' offices. some get the conviction and do what you need to do to get a conviction rather than thinking about what the supreme court said which is not to seek convictions but justice. sometimes just this means seeking a conviction and sometimes it means dismissing a case. >> professor davis, is there a polarization of the prosecutor's office? is it important to have that when, the prosecution? >> it depends on the culture of the office. i think there are too many officers where there is a culture of when at any cost. there are some prosecution officers or the prosecutors are not into that culture or they
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are trying to do the right thing. there is a prosecutor in dallas county now who came into that office and decided, for example, that the cause -- he decided because they had a bad history of the prosecutorial misconduct and wrongful convictions that he was going to reveal all of the cases and decide and then investigate them and he found a number of people were innocent so he made that his goal. pamela harris committee now attorney general in california, used to be the da in san francisco. she had a very different approach where she wanted to divert a lot of the cases and not have her assistance go for just conviction but she wrote a book called smart on crime we don't want to lock up everybody because we need to look at the role as prosecutors in a bigger way and there are other prosecutors out here that are
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trying to do the right thing but far too many of them in my view do have this win at any cost attitude and that is the type of attitude that will result in the kind of injustice is that i talk about in my book >> host: is there a way of holding the prosecution offices accountable for their action? >> that is the question i try so hard to get to and in the last chapter of my book i talk about reform. there are so many different problems in the system and the answer of of reform is very dawn of the problems are. so for racial disparity for a simple, there is a project now going on at the institute and the prosecution and racial justice project where the statisticians are going into certain prosecutor's office is at the invitation of certain chief prosecutors who are interested in improving the
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system and keeping statistics on the race of the victim and the defendant and keeping statistics at the various decision plans along the way to see whether certain race neutral decisions are having a racial result. in other words if they are doing something unintentional it is resulting in this kind of disparity they are saying we don't want to make decisions creating racial disparity if we are doing it so that is an exciting project is just beginning, there is volunteers doing it and we have even seen some results were the prosecutors have made certain changes in their decision making that are making the system more fair so that is one type of solution. for the misconduct that i talked about before we give prosecutors are withholding evidence, again, i mentioned the case and mccarthy, i was so surprised when the case came out because everybody was so surprised and i
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was not. what they did in the case had been swayed too often in our system, but the victims of that are usually poor and african-american, didn't quite make the news and we don't hear about it but it happens a lot. >> host: that's the duke lacrosse case? >> guest: that's the duke lacrosse case held with duplicative evidence. if that happens a lot and i talk about a quite a bit in my book. >> host: do you not think he should have been dismissed? >> guest: i think he should have been but i think a lot of other prosecutors should be, too. that is my point. the case got the attention ended because those men were well off, they were able to hire a top-notch defense team but because the it team of lawyers, that team was able to discover the violation to be the they had to go with thousands of pages of dna evidence to discover they found. most are not going to be able to do that so the individuals that
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are poor and other victims of that kind of misconduct, the prosecutors are never referred to the council, never even punished in any way and that is the concern we need to beef up the bar council system so that they are engaging in this kind of misconduct or referred to in the council and are disciplined when they do something wrong. now when they violate the judy turnover exculpatory evidence in the majority of the cases nothing happens which is why there is no incentive for them to sort of change the practice is because there is no punishment and that i think is one of the improvements that we have to make if we want to see the changes. >> host: booktv is at american university talking with law professor and angela davis. here's the book, arbitrary justice the power of the american prosecutor oxford university is the press. professor davis, what do your
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colleagues on the prosecutorial side, what do they say about arbitrary justice? >> guest: well, you know, when i wrote the book i expected a big - from the prosecutors, and interestingly enough i haven't gotten that much of a backlash. what's interesting is a lot of my friends who were for our prosecutors are saying yes. the current prosecutors, those i know that were saying -- many were saying yes with the things you write about your painting too broad of a brush. i've gotten that criticism but a lot will admit the system encourages this kind of behavior saying that what we need to do is have more when they come in they are very zealous and they are not trained properly and some asks why are they exercised
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with discretion, for example a more seasoned prosecutor but a lot of times when they've been in the office for a while but many of them will learn that you don't have to go full steam on every case. there's been a mixed response but i haven't gotten as much negative responses and many of my defense attorney friends of course agree with what i'm saying because they have experienced it in that practice. >> host: this is a very inelegant question but being the head of the d.c. defender's office for several years, did you burnout? >> guest: i didn't, because i left when i did. being a public defender -- and i love being a law professor. it's the greatest thing and i hope to do their best of my life. it was the most important work i had ever done or feel i will
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ever do. i love every day standing next to my clients and representing them and making sure that standing between them and the government, you know, saying to the government you have to come through me first because our clients were poor and i would look at them and save for the grace of god who knows. i may have ended up in that situation so i took a great deal of pride. i've been gone for a while. there are now just the best lawyers. i stayed and i had the good fortune of being there in a number of capacities. i was a deputy director and i had the opportunity to work in different capacities and i left at a time i was still having that and that time comes at a
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different point for different people, people that have been there for 20, 25 years i couldn't have done that because when i got to the point i felt like i was about to get burned out or left before that happens when. the clients deserve to have your 100 percent energy all the time that the record we had a budget and want to make sure we are well funded and that is a different kind i was getting tired of. i think i left at the right time and it's now incredibly well. >> host: why don't you tell everybody what it's like to be a lawyer in an actual murder case. >> guest: >> host: what advice. >> guest: what advice. >> host: like is it like law
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and order? >> guest: i have a hard time watching the television shows. it's very intense representing individual when you are based on liberty and that responsibility especially in a murder case is incredible. there was never a time i wasn't a bundle of nerves. i felt sick because i knew if i may animistic it could cost the client. this also incredibly fulfilling. when the jury comes back with a non-guilty vote it's the better sound for me to know i was able to free some one and i felt good about so it's not for everyone. i talked to my students about this all the time and those that are interested in crumble wall
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kill the one to the prosecutors and someone to the defense attorneys and i encourage both of them. we need smart ethical prosecutors and i push them to do that and i help them and those that went to the defense attorneys in my own background i encourage them as well. we need good, smart students to be in the criminal-justice system and defense attorneys. i am happy when they are doing it either and i always encourage them. >> host: did you ever defend someone that you were convinced was guilty or is that not your job? >> guest: it's not my job i never thought about whether they were innocent or guilty. my job is to provide the best defense possible for that client and i would always have to do that and i didn't care quite frankly whether they were innocent or guilty it is the job of the jury to judge. we have an adversarial system we have a prosecutor fighting on one side, the defense attorney on the other hand justice
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emerges from that star deciding i'm not going to be on my client's side i'm going to question him and start judging him there is no way he's been to get justice so my job is to provide the best defense possible, to be there for that client and do everything in my power to help him out of the system and i was happy to do that. >> host: what the prosecutors say is the advantage of the offender? >> guest: they would want to be against a defendant who is working hard because that applies to believe in justice and the adversarial system. once they have a defense attorney on the other side that is doing their job representing their client if he or she is a good prosecutor they would want that defense attorney to fight hard for their client said the
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system will be more fair. >> host: what does that remind us? >> guest: that was an example of which prosecutor was abusing his discretion and louisiana it got national attention there was a high school in this little town in louisiana and the african-american students and the white students tended to segregate themselves. the black kids at one point were sitting under a tree and at one point the hon nooses from that tree where they were traumatized by mentioning its history.
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they were getting in fights and the prosecutor basically came into the schools reddening the black students and promising he was when the prosecutor then and in fact there were square's the white kids committing assaults and the short answer is that the black kids in the that charged with very serious felonies in adult court where the white kids had committed a crime or not. it was one of these examples where its certainly appeared race was played angle in that case where the african-american students were being treated and the white kids that committed the crimes were not so it created quite an outrage. there was a national march of people going down to protest it but again this was an elected
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prosecutor i don't think that he could have cared about all these people marching down but he cared about the constituents that voted him in so he didn't respond in a very positive way. ultimately i think it called his national attention to the the the judge in the up, not all the individuals in the case ended up with him on a fair result but i think it was because of the attention put on the laws. >> they are probably not kids anymore but the defendant still in jail? >> guest: i don't think they are because it happened some time ago. >> host: where did you grow up? my father was in the service and sand bannings georgia. and i think actually my growing up there had a lot to do with why i became a public defender. i grew up in the sector beat
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south, yes, i am that old. i grew up at a time i remember the accommodations and i remember traveling to south carolina to see my father who was in the service to drive that long-distance she felt that if we did we would be treated okayed liked that and wanted to be a civil rights lawyer that that's what i wanted to do from the time i was 6-years-old, i'm sorry, the sixth grade. and i knew i was going to law school and by the time i went, i got interested in criminal law. before that i never thought of, wall and my professor made of the class interesting and i thought of pursuing that and i
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ended up that wasn't so much later on a think that the work of public defenders we are fighting some civil rights of our clients and given the disparity of the criminal-justice system, the racial disparity. i went to harvard law school and howard university undergrad. you have a very famous name. a few times i've gotten invitations from cuba but she is an incredible wollman myett meijer triet >> host: you met her? >> guest: i've never met her. i want to meet her. i get a lot of e-mails and that kind of communication with her.
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she now is doing a lot of important work on the present industrial contact creates more confusion >> host: we have been talking with defense the power of the american prosecutor. estimate from american university we discuss how to succeed in college a while really trying it. the professor gives advice for students entering college and argues while many books still high school students how to get into college very few tell the students how to succeed once they get there. this interview is a part of the college series and it's a little under 15 minutes. >> on your screen is american university professor john gould who is a professor noval at the university and also the director of the american university
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washington institute for public and international affairs and he's written this book how to succeed in college why of really trying. who is this written for? >> guest: it's written for two groups of students, one for high school seniors on their way to college and it's also written for first-year students who come to this place and kind of find it somewhat foreign. i should also add it's written for the parents of the students as well. >> host: when you are asked as a college professor what will make my son or daughter successful what is your short answer? >> guest: ascent of independence and responsibility that this defense parents may not want to hear because that means they have to pull that. when we get them here it's a chance for them to take ownership of their alliance and be responsible for what they need to do and that is th